Trespassing on Treaty Rights: Saskatchewan’s Proposed Restrictions on Access
By Kate Gunn & Bruce McIvor
Serious questions have already been raised as to whether the new legislation violates Indigenous Peoples’ constitutionally-protected treaty rights. Just as critically, if enacted the amendments will contribute to misunderstandings regarding the nature of Indigenous Peoples’ treaty right to hunt and increase the potential for further conflict.
What it is about
Between 1871 and 1921 the Crown negotiated a series of treaties with Indigenous Peoples which collectively established the terms on which Indigenous and non-Indigenous people would use and live together on lands throughout much of what is now western Canada.
While the specific provisions of the treaties vary, most provide that the Indigenous parties will have the right to continue to hunt throughout their territory until those lands are "taken up" by the Crown for settlement, mining, lumbering or other purposes. Today this right is recognized and protected under the Constitution Act, 1982.
On November 27, 2018 Saskatchewan tabled amendments to the Trespass to Property Act, Snowmobile Act and Wildlife Act which would require all members of the public in Saskatchewan to seek permission from rural property owners before entering privately-owned land. As a result, Indigenous Peoples who hold treaty rights to hunt would now be required to obtain a landowner’s consent prior to hunting or face possible charges under provincial law.
Why it is important
As Indigenous organizations have pointed out, the legislation may be unconstitutional and vulnerable to legal challenge. More than twenty years ago, the Supreme Court of Canada in R. v. Badger held that treaty lands will be considered “taken up” where they are put to a purpose which is visibly incompatible with hunting. Examples of lands used for a purpose which is visible incompatible with hunting use includes lands where there are roads, buildings, or other indications of private use and occupation.
Importantly, the Court in Badger did not find that private ownership of land in itself constitutes a use which is incompatible with the right to hunt. The Supreme Court’s definition of the take-up clause has since been affirmed by numerous lower courts, including in 2018 by the Saskatchewan Court of Appeal in R. v. Pierone.
Saskatchewan’s new trespassing legislation, which would prohibit Indigenous Peoples from hunting on privately-owned, unoccupied lands without the landowner’s permission, appears contrary to the Court’s direction on this issue.
On a more fundamental level, the legislation is at odds with the purpose of the treaties themselves. Indigenous Peoples have consistently maintained that the treaties are about the sharing of the use and benefits of their ancestral lands.
This understanding, for example, was confirmed in the Grassy Narrows trial decision, in which the court concluded that the Crown expressly promised the Indigenous parties to Treaty #3 that they would be entitled to use their territory as they had previously, and that on entering into treaty, both parties expected that the Indigenous and non-Indigenous use of the lands would be compatible. These findings of fact went unchallenged in the subsequent decisions of the Ontario Court of Appeal and Supreme Court in that case.
Saskatchewan’s approach is particularly troubling in light of the Supreme Court’s recent Mikisew decision. In Mikisew, the Court was clear that if the Crown wishes to act honourably and avoid the potential for future legal challenges, it should consult with Indigenous Peoples and address their concerns prior to enacting legislation which infringes their Aboriginal and treaty rights.
If Saskatchewan intends to advance reconciliation through the honourable fulfilment of its treaty promises, it should follow this direction and consult meaningfully with the Indigenous treaty parties before proceeding further with proposed legislative amendments which will directly affect the treaty rights of Indigenous Peoples in Saskatchewan.
In the recent Mikisew decision, Justice Karakatsanis summarized one of the fundamental principles of treaty rights:
…the honour of the Crown governs treaty making and implementation, and requires the Crown to act in a way that accomplishes the intended purposes of treaties and solemn promises it makes to Aboriginal peoples…. Treaty agreements are sacred; it is always assumed that the Crown intends to fulfill its promises. No appearance of “sharp dealing” will be permitted…. (para. 28)
Unfortunately, the current Saskatchewan government appears to have failed to have received the message.
If implemented honourably, the terms of the numbered treaties could set the stage for the peaceful co-existence of Indigenous and non-Indigenous people throughout much of Canada, and ultimately, pave the way for reconciliation between Indigenous Peoples and the Crown. However, Saskatchewan’s decision to introduce new laws which would further limit treaty rights seems more likely to have the opposite effect.
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